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To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

This matter is before the Authority on exceptions to the
award of Arbitrator Arthur T. Van Wart. The Arbitrator found that a grievance
concerning the grievant's nonselection for promotion to either of two vacancies
was grievable and arbitrable. The Arbitrator found that the appointment and
deliberations of a Selection Advisory Panel convened to identify the specific
candidates to recommend to the Selection Official for the two vacancies
violated law, rule and regulation. The Arbitrator concluded that the grievant
was denied a promotion to which he was entitled and ordered that he "be made
whole monetarily" for the period of time he was denied promotion until the date
of his subsequent promotion to another position. Award at 12.

The Department of the Navy, Aviation Supply Office (the
Agency) filed exceptions to the award under section 7122(a) of the Federal
Service Labor-Management Relations Statute (the Statute) and part 2425 of the
Authority's Rules and Regulations. The American Federation of Government
Employees, Local 1698 (the Union) did not file an opposition to the
exceptions.

For the reasons discussed below, we conclude that the
Agency has failed to establish that the award is deficient on any of the
grounds set forth in section 7122(a) of the Statute. Accordingly, we will deny
the Agency's exceptions.

II. Background and Arbitrator's Award

A grievance was filed and submitted to arbitration
claiming that the grievant was not given proper consideration for promotion to
either of two vacant positions for which he applied and for which he was ranked
first on the respective promotion lists. The grievance contended that use of a
Selection Advisory Panel violated the parties' collective bargaining agreement.
The grievance also alleged that the failure to select the grievant violated
merit systems principles because the chairman of the Selection Advisory Panel,
the grievant's supervisor, unduly and improperly influenced fellow panel
members in identifying and recommending other candidates for the
vacancies.

The Arbitrator framed the issues for resolution as
follows:

1) Is the question of Grievant['s] . . . non-selection
as a candidate for promotion to the two posted vacancies . . . non-grievable or
non-arbitrable?

2) If found in the affirmative, were the factors used by
the Selection Advisory Panel in violation of any statute, government
instruction, rules and regulations and/or the parties [sic]
Agreement?

3) If so, what is the appropriate
remedy?

Award at 2.

The Arbitrator found that the appointment of a Selection
Advisory Panel was inconsistent with the requirements of the parties' agreement
and with an applicable Agency regulation. He also found that the panel's
deliberations were improper because neither the candidates nor their respective
supervisors were interviewed, as was required by an Agency instruction.
Moreover, he found that the Panel's deliberations were unduly influenced by its
chairman, who "went out of his way to assure that any advantages that
Grievant's favorable position as No. 1 [in the ranking of candidates] gave him,
were lowered." Award at 10. For example, the Arbitrator noted that, in
conducting the Panel's deliberations, the chairman of the Panel "was able to
interject personal feelings about the Grievant's alleged attitude and to
persuade the other [P]anel members that the Grievant should not be recommended
for selection for either position." Id. The Arbitrator also noted that
"despite the accolades by others as to the Grievant's known capabilities for
excellent work performance [the Panel's chairman] did not give the Grievant
'full and fair consideration' as a candidate." Id.

The Arbitrator stated that the testimony of the Selection
Official "was not supportive" of the grievant's nonselection. Id. The
Arbitrator described the Selection Official's testimony as "an haphazardous
[sic] endeavor to support [the Panel chairman's] opinions or actions."
Id. He also noted that the Selection Official failed to furnish
documentation supporting her choices, as required by the applicable Agency
Joint Instructions.

The Arbitrator acknowledged "that merely not picking the
candidate ranked No. 1 is not a grievable issue." Id. at 11. However,
the Arbitrator noted that a grievance based on nonselection for promotion is
appropriate where clear violations of merit system principles are identified
and alleged. The Arbitrator found that "the overall unfair and uneven handed
treatment of the Grievant by [the Panel chairman and the Selection Official]
represent non-merit factor intrusion into the promotion process[.]" Id.
The Arbitrator concluded that the grievance was grievable and arbitrable,
stating that "the consideration given Grievant's candidacy for promotion was a
clear violation of Merit Systems Principles." Id.

The Arbitrator found that "there was a causal connection
between an improper [A]gency action and the failure of Grievant to be
promoted." Id. Accordingly, as his award, the Arbitrator stated that
"Grievant . . . is to be made monetarily whole for the period of time during
which he was denied a promotion until [he was] promoted, which period of time
is estimated to be thirteen months." Id. at 12.

III. Exceptions

The Agency contends that the award violates management's
right to select employees to fill positions under section 7106(a)(2)(C) of the
Statute. The Agency asserts that the Arbitrator failed to find that "but for"
the improper action on its part, the grievant would have been selected.
Consequently, in the Agency's view, the Arbitrator violated management's right
to select by erroneously substituting his judgment for that of the
Agency.

The Agency further argues that the award is deficient
because it is contrary to the Back Pay Act, 5 U.S.C. º 5596 (the Act). The
Agency maintains that the Arbitrator failed to find that: (1) the grievant was
affected by an unjustified or unwarranted personnel action, and (2) there was a
direct connection between the Agency action and the selection of candidates
other than the grievant.

IV. Analysis and Conclusions

A. The Award is not Inconsistent with the Agency's
Right to Select under Section 7106(a)(2)(C)

Management's right to select personnel to fill positions
encompasses the authority to make the actual substantive determinations in the
selection and appointment process and to choose from among a group of properly
ranked and certified candidates or from any other appropriate source.
See, for example, Veterans Administration Medical Center,
Houston, Texas and American Federation of Government Employees, Local 1633,
32 FLRA 997, 1001 (1988). The Arbitrator in this case, however, did not direct
the Agency to place the grievant in one of the positions for which the grievant
competed unsuccessfully. The award required only that the grievant "be made
whole monetarily for the period of time, some thirteen months, that he was
denied the promotion until he was subsequently promoted." Award at 11.
Accordingly, we find no interference with the Agency's right to make selections
for appointments under section 7106(a)(2)(C) of the Statute.

B. The Award does not Violate the Back Pay
Act

In order for an award of backpay to be authorized under
the Back Pay Act, the arbitrator must determine that: (1) the aggrieved
employee was affected by an unjustified or unwarranted personnel action; (2)
the personnel action directly resulted in the withdrawal or reduction of the
grievant's pay, allowances or differentials; and (3) but for such action, the
grievant otherwise would not have suffered the withdrawal or reduction. The
United States Department of Justice, Federal Bureau of Prisons, Federal
Correctional Institution, Fort Worth, Texas and American Federation of
Government Employees, Council of Prison Locals, Local Union 1298, 32 FLRA
128, 131 (1988). In order properly to have awarded backpay in this case, the
Arbitrator must have determined that the grievant would have been selected for
promotion to one of the two vacancies but for an unwarranted or unjustified
personnel action.

According to the Arbitrator, the Agency conceded that
"[t]he failure to notify the Union as to the decision to use a Selection
Advisory Panel was error and was an oversight." Award at 7. The Arbitrator
found that the Panel was convened in violation of the collective bargaining
agreement because the agreement required such notification. In addition, the
Arbitrator found no grounds in the negotiated agreement or in applicable
regulations for convening the Panel at all. The Arbitrator further found that
"the illegally and improperly appointed Selection Advisory [Panel]" did not
proceed in a manner consistent with either contractual or regulatory
requirements. Award at 8. The Arbitrator concluded that the appointment and
deliberations of the Selection Advisory Panel violated the parties' collective
bargaining agreement.

Violation of a collective bargaining agreement
constitutes an unjustified or unwarranted personnel action. Department of
Health and Human Services, Health Care Financing Administration, Region IV,
Atlanta, Georgia and National Treasury Employees Union, Chapter 210, 21
FLRA 910, 913 (1986). The Arbitrator found that the Agency violated the
collective bargaining agreement and that the grievant was affected by the
Agency's violation. The award, therefore, satisfies the first part of the test
in determining eligibility for backpay under the Act.

The second part of the test requires a finding that the
unjustified or unwarranted personnel action directly caused a withdrawal or
reduction of the grievant's pay, allowances or differentials. The Arbitrator
found that the grievant's failure to be promoted was attributable to the
Agency's violations of the parties' collective bargaining agreement. Award at
11. There is no question that the failure to be promoted constituted a
withdrawal or reduction in the grievant's pay, allowances, or differentials.
Therefore, the award satisfies the second part of the test for an award of
backpay. SeeVeterans Administration Hospital and American Federation
of Government Employees, Lodge 2201, 4 FLRA 419, 424 (1980).

We also find that the Arbitrator's award of backpay
satisfies the third part of the test for an award of backpay under the Act. We
conclude that the Arbitrator found that, "but for" the Agency's unwarranted or
unjustified personnel action in appointing a Selection Advisory Panel, the
grievant would have been promoted.

The Arbitrator observed that "something obviously
occurred to the opinion" of the Selection Advisory Panel chairman in the period
between the time he headed the Rating and Ranking Panel, which ranked the
grievant as the best qualified candidate for both vacancies, and the time when
he was designated to chair the Selection Advisory Panel. Award at 9. The
Arbitrator noted that, after the Selection Advisory Panel was convened, the
chairman "went out of his way to assure that any advantages that Grievant's
favorable position as No. 1 gave him, were lowered." Id. at 10. The
Arbitrator stated that the Panel chairman "improperly and unfairly asserted
that the Grievant had an attitude problem because the Grievant failed to show
up at a meeting as [the chairman's] representative," and that chairman "offered
no proof thereafter to support his assertion." Id. The Arbitrator noted
that the chairman made his assertions despite performance appraisals, prepared
by the chairman in his supervisory capacity, which rated the grievant "as being
'outstanding' in April and also again in October of 1986. Also, despite the
accolades by others as to Grievant's known capabilities for excellent work
performance [the chairman] just did not give the Grievant 'full and fair
consideration' as a candidate." Id. In addition, the Arbitrator found
that the chairman "was able to interject personal feelings about the Grievant's
alleged attitude and to persuade the other [P]anel members that the Grievant
should not be recommended for selection for either position."
Id.

The Arbitrator found that the unwarranted appointment of
a Selection Advisory Panel, the improprieties in the Panel's deliberations, and
the unconvincing testimony in support of the grievant's nonselection provided
by the Selection Official evidenced a purpose on the part of the Agency "to go
outside the prescribed system to determine a candidate" for each vacancy.
Id. at 11. Consequently, the Arbitrator found that the appointment and
deliberations of the Selection Advisory Panel deprived the grievant of a
promotion to either of the two positions. The Arbitrator concluded that there
was a "causal connection" between the improper Agency actions and the failure
of the grievant to be promoted. Id.

In our view, the Arbitrator's finding of a "causal
connection" constitutes a finding that, but for the Agency's improper conduct,
the grievant would have been promoted. SeeMichigan Air National
Guard, Adjutant General of Michigan, Department of Military Affairs and
Michigan State Council of the Association of Civilian Technicians, 30 FLRA
165, 169-70 (award sustained where Authority found that arbitrator's direction
that grievant receive backpay lost because of nonselection for assignment in
violation of parties' agreement satisfied statutory "but for" test).
Consequently, we find that the award satisfies the requirement of the Back Pay
Act in finding that the grievant was the victim of a personnel action, "but
for" which he would not have suffered a withdrawal or reduction in
pay.

As we previously found, the Arbitrator properly
identified both the Agency's appointment of the Selection Advisory Panel and
the Panel's deliberations as an unjustified or unwarranted personnel action.
The Arbitrator also found that the unjustified or unwarranted personnel action
directly caused the withdrawal or reduction of the grievant's pay, allowances
or differentials. The Arbitrator further determined that, but for the Panel's
appointment and deliberations, the grievant would have been promoted. We
conclude, therefore, that the Arbitrator satisfied the Back Pay Act's criteria
for awarding backpay.

Consistent with our above findings, we conclude that the
Agency's exceptions must be denied.